" Politics is tricky; it cuts both ways. Every time you make a choice, it has unintended consequences." — Stone Gossard
A recent opinion from the Tennessee Attorney General's office, No. 15-63, July 29, 2015, illustrates some of the unintended consequences of private enterprises using publicly owned facilities.
In 2015 the Tennessee legislature amended the Tennessee's law 39-17-1311 dealing with carrying weapons in public parks, playgrounds, civic centers and other public recreational buildings and grounds. Subsection of that section (a) makes it a criminal offense for any person to possess or carry certain weapons, including handguns, "in or on the grounds of any public park, playground, civic center or other building facility, area or property owned, used or operated by any municipal, county or state government, or instrumentality thereof, for recreational purposes." However subsection (b)(1)(H) carves out an exception for "[p]ersons possessing a handgun, who are authorized to carry the handgun pursuant to § 39-17-1351, while within or on a public park, natural area, historic park, nature trail, campground, forest, greenway, waterway or other similar public place that is owned or operated by the state, a county, a municipality or instrumentality thereof." No matter where one stands on the gun debate, it is reasonably clear that Tennessee Legislature has authorized handgun carry by permit holders in what some persons would normally wish to see designated as a "gun free zone".
Besides the gun debate, another debate that occurs, clearly with less emotion, is the issue of whether governmental units should subsidize local sports franchises. Across the country one sees a trend of state and local governments being asked to provide various forms of financial support for privately owned sports franchises. For example, in a 2008 article the American Enterprise Institute noted that "Since 1990, construction of stadiums and arenas for professional sports franchises has occurred at an incredible pace. In that time, Major League Baseball (30 teams) has opened 19 new stadiums and has three more currently under construction. The National Football League (32 teams) has opened 17 new stadiums; done major renovations to four others; has three under construction; and has four more projects at various stages of planning and negotiations. The National Basketball Association (30 teams) has opened more than two-thirds of its 30 arenas since 1990, and at least three NBA franchises are actively seeking new arenas. In most cases, state and local governments have been closely involved in the financing, design, construction, and management or ownership of professional sports facilities."
The Attorney General's opinion has caused a local stir since, by implication, it appears that professional sports franchises in Tennessee, which operate in arenas owned by counties or municipalities, will no longer be able to bar handgun permit holders from carrying handguns at their venues. An August 3, 2015 article in the Tennessean noted that "Weapons are banned at all National Football League games by the NFL. The 2013 league policy allows on-duty police officers and security to carry weapons, according to Yahoo News. Bridgestone Arena and the Predators don't allow fans to bring in weapons either. Both venues also frequently play host to concerts and other events; guns also are banned during these events. Jeff Cogen, CEO of the Predators, said Monday he was not familiar with the opinion from the Tennessee attorney general. He declined further comment. "We do abide by the NFL's policy prohibiting weapons. Additionally, the terms of our lease permit us to impose and enforce such rules and regulations governing the use of the facility, and the no-weapons policy is included in that, with the exception of uniformed law enforcement personnel," said Jimmy Stanton, vice president of communications for the Titans."
And there is the rub. When you lease from the County, you can only get what the county has to give. As the AG opinion notes: "It is likewise well established that one cannot transfer something one does not possess. See, e.g., Lisenbee v. Parr, 465 S.W.2d 361, 365 (Tenn. App. 1970). Since a county or municipality no longer has the authority to prohibit handgun carry permit holders from possessing handguns in public parks and other recreational facilities, a county or municipality cannot convey or delegate any such authority to anyone else, either directly or indirectly." In other words, while the NFL policy may require the Titans to prohibit handguns at its arenas, it is powerless to do so if a citizen has a handgun carry permit in light of 39-17-1311(b)(1)(H).
While this issue can be focused at a micro level, it illustrates a bigger point. Know who's on the other side of your contract or lease and what power they have to grant you rights. Ultimately, when dealing with governmental entities we assume that rights flow from the consent of the governed and the legislatures acting legitimately reflect expressions of the consent that has been given.
So how does the story end? It's probably safe to assume that at some point lawyers will get involved and litigation may ensue. But as litigators we probably should bear in mind the following admonition: "Legislative action implements popular sovereignty; judicial review contradicts that ideal. Every judicial invalidation of a statute overrides the judgment of elected officials and substitutes the decision of persons removed from the institutional constraint of voter approval and schooled in the wisdom of an antidemocratic tradition." Jackson and Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va. L. Rev. 1, 6 (1979). And sometimes, maybe what lawyers label as unintended consequences were consequences which were intended all along.
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